United States District Court, W.D. Kentucky, Louisville
RAMON F. FLORES MOVANT/DEFENDANT
UNITED STATES OF AMERICA RESPONDENT/PLAINTIFF
Charles R. Simpson III, Senior Judge United States District
2010, a federal grand jury indicted Ramon F. Flores and his
co-defendants for conspiring to “possess with the
intent to distribute and distribute 5 kilograms or more of a
mixture or substance containing cocaine” (Count I).
Superseding Indictment 1, ECF No. 156. After Flores proceeded
to trial, a jury convicted him of Count I. Verdict 1, ECF No.
699. He was sentenced to imprisonment for 360 months, a
supervised release term of five years, and a special
assessment of $100.00. Am. J. 3-6, ECF No. 883.
United States Court of Appeals for the Sixth Circuit affirmed
his conviction. Order 9/29/2014 5, ECF No. 968. Flores then
petitioned the United States Supreme Court for a writ of
certiorari. Notice Pet. Cert. 1, ECF No. 987. The Court
denied Flores a writ of certiorari. Denial Cert. 1, ECF No.
February 18, 2016, Flores moved pro se to vacate his
sentence under 28 U.S.C. § 2255. Mot. Vacate 1, ECF No.
1048. Two days later, with the assistance of counsel, he
filed an amended motion to vacate his sentence under §
2255. Am. Mot. Vacate 1, ECF No. 1051. The United States
responded to Flores's original and amended motions to
vacate. Resp. Opp. Mot. Vacate 1, ECF No. 1062. Flores
replied. Reply 1, ECF No. 1064.
Judge Dave Whalin then ordered the United States to file a
supplemental response addressing two ineffective assistance
of counsel claims asserted in Flores's original, pro
se motion to vacate his sentence under § 2255.
Order 10/04/2016 1, ECF No. 1069. The United States
accordingly filed a supplemental response. Suppl. Resp. Opp.
Mot. Vacate 1, ECF No. 1073. Flores replied to the United
States' supplemental response. Reply Suppl. Resp. 1, ECF
February 6, 2017, the magistrate judge issued a report and
recommendation on Flores's motions to vacate his sentence
(“the February 2017 report and recommendation”).
R. & R. 1, ECF No. 1080. In the February 2017 report and
recommendation, the magistrate judge recommended that this
Court deny Flores's original motion to vacate and amended
motion to vacate the sentence. Id. He also
recommended that this Court deny issuance of a certificate of
filed three objections to the February 2017 report and
recommendation. Obj. R. & R., ECF No. 1081. For the
reasons stated below, the court will overrule Flores's
objections to the February 2017 report and recommendation.
Standard of Review
Court makes a de novo determination of the proposed findings
or recommendations to which Flores objects. See 28
U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b)(3).
objects to three determinations made by the magistrate judge
in the February 2017 report and recommendation. First, Flores
objects to the magistrate judge's recommendation that his
ineffective assistance of counsel claims be denied. Obj. R.
& R. 3-4, ECF No 1081. Flores contends that his defense
counsel's decision to wait two days before his trial date
to move to exclude untimely disclosed government evidence,
his defense counsel's failure to keep him informed of
developments in his case, the discrepancy between the number
of documents submitted by the government and those received
by defense counsel, and defense counsel's question to the
presiding judge, “Am I required to challenge it before
trial?” contradict the magistrate judge's
determination that his trial counsel's allegedly
deficient performance did not prejudice him. Id.
original motion to vacate his sentence, Flores also states:
In the instant case defense counsel was under a duty to
launch a full investigation in order to locate all possible
data that would have allowed him to present to sentencing
court the results of his investigation and research. If the
failure in any way was caused by defense counsel not
following that line of investigation, or not visiting his